IMPORTANT POINTS
In an amendment the substituted provision undergoes a repeal (including proviso) and, there is a re-enactment through the newly inserted provisions.
Advertisement cannot be opposed to statutory rule.

JUDGMENT :

K.M. JOSEPH, J.

1. Leave granted.

2. The appellant issued an advertisement on 11.8.2013 for recruiting Teachers Grade III (Level I and II) in the various Zila Parishads in the State of Rajasthan. The advertisement stipulated the last date for submission of the application form as 4.9.2013. The applicants were to fulfil the requisite educational qualifications as on the last date of the submission of the application form. The writ petitioner who is the respondent (hereinafter referred to as “the respondent”) was undergoing the B.S.T.C. Course (B.S.T.C. is an essential qualification stipulated). He, however, applied pursuant to the advertisement. The appellant discovered during the process of verification that the respondent was not holding the requisite qualification of B.S.T.C. as on the last date for submission of application form. The respondent appeared on the basis of an order passed by the High Court permitting him and others to submit their application however, it was subject to the decision in SBCWP No. 10845/2013. Thereafter, he completed his B.S.T.C. second year course and the results were also declared. The result of the recruitment examination was declared on 17.5.2014. Finding that the result of the examination in regard to the respondent and another was not uploaded on the official website, they filed writ petition No. 244/2015. An interim order was passed in the said writ petition to bring the result of the petitioner in a sealed cover before the Court. The High Court further directed that the results to be declared. The respondent secured 158.41 marks. The respondent was called for verification of documents. Though the respondent secured marks which was more than the cut-off, his name was not found in the Select List dated 16.3.2015. After representing and not eliciting the required response, the writ petition which led to the present appeal (W.P. No. 2801/2015) came to be filed seeking to quash final select list dated 16.3.2015 and to direct the appellants to declare the selection list of the respondent as marks secured were higher than the cut-off in the respective category. Finally, direction to appoint the respondent to the post of Teacher Grade III (Level I) with all consequential benefits was sought. The appellant filed counter affidavit. The learned Single Judge dismissed the writ petition.

In appeal filed by the respondent, by the impugned order, however, the division Bench allowed the writ petition.

3. The controversy which falls to be resolved by us is whether the High Court was right in holding that the proviso to Rule 266(3) of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as “the Rules”) which was relied upon by the respondent remained intact despite the substitution of Rule 266(3) by Notification dated 11.5.2011. The proviso read as follows:

“Provided further that the person who has appeared in the B.Ed./B.S.T.C. examination shall be eligible to apply for the post of primary and upper primary school teacher but he shall have to submit proof of having acquired the said educational qualification to the District Establishment Committee before the declaration of result of the said examination.”

4. In short, if the proviso held the field, the respondent would become eligible and qualified for selection and appointment based on merit. If the proviso on the other hand was not available, the respondent would not be eligible for the reason that as contended by the appellants, as on the last date for filing application the respondent had admittedly not passed the B.S.T.C. examination. The respondent had actually appeared for the examination and taking shelter under the proviso, the respondent claimed to be qualified on the terms thereof. The High Court after referring to the amendment dated 11.5.2011 to clause (3) of Rule 266, dwelt upon the purpose of a proviso. The Court adverte